APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
526 N.E.2d 1376, 172 Ill. App. 3d 807, 122 Ill. Dec. 613 1988.IL.1225
Appeal from the Circuit Court of Livingston County; the Hon. Harold J. Frobish, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
After a consolidated jury trial, defendant was convicted of three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16). Subsequently, the trial court sentenced him to concurrent terms of eight years' imprisonment for each of the aggravated criminal sexual assault convictions and three years' imprisonment for the aggravated criminal sexual abuse conviction.
Defendant argues: (1) the trial court erred in cause No. 86 -- CF -- 187 by allowing the State to add four additional counts to the indictment; (2) double jeopardy barred his conviction on count III in cause No. 86 -- CF -- 187; (3) he was not proved guilty beyond a reasonable doubt; (4) a variance between the date of the offense stated in the information in cause No. 86 -- CF -- 159 and the trial evidence denied him a fair trial; (5) the trial court erred in instructing the jury; (6) the trial court erred in admitting details of the corroborative complaint; (7) the trial court erred in excluding evidence; and (8) the cumulative effect of the prosecutor's closing argument denied defendant a fair trial. Additionally, defendant argues the criminal sexual assault statute is unconstitutional because it is not limited to sexual acts performed for gratification or arousal, aggravated criminal sexual assault requires a less culpable mental state than aggravated criminal sexual abuse, and criminal sexual assault is not a lesser included offense of aggravated criminal sexual assault. Defendant also argues and the State concedes that he is entitled to a 126-day credit against his sentence.
We affirm and remand for entry of a credit against his sentence.
It is necessary to review the evidence, keeping in mind the defendant's arguments that he was not proved guilty because complainant contradicted her own testimony about the date when the simulated penises were used and the dates she first and last saw them and the corroborating evidence was insufficient.
The complainant testified that she was 10 years old. Her mother worked at a video rental store in Pontiac. She had moved to Saunemin in May 1986, but had previously lived in Pontiac. Defendant was her baby-sitter when she lived in Pontiac and for a while when she lived in Saunemin. Defendant lived a block away from complainant's Pontiac home. A month after she met defendant, he started baby-sitting her while her mother worked. The previous summer, while she was on vacation in Iowa, she told Candy Hill, a friend of complainant's family, that defendant had abused her. Over objection and a motion for mistrial, complainant stated that she told Hill that defendant put his finger and tongue between her legs and tried to insert a simulated penis into her vagina.
Complainant stated defendant had touched her in "bad places" more than 10 times. He started about a month after she met him. The first time he put his finger between her legs. The last time was the day before he left for Jamaica, July 11, 1986. Prior to trial, the parties stipulated that defendant left O'Hare Airport for Jamaica on July 12, 1986. He returned to O'Hare on July 26, 1986. No one else was at defendant's home when the incidents occurred. The day before defendant left for Jamaica, complainant was in the spare bedroom undressed because she was getting ready to take a bath. Defendant entered the room, told her to be quiet, not to do anything, and lie on the bed. She could not get up because his hands were on her legs. Defendant knelt on the floor and licked her "privates" for five minutes. Defendant said that if she did not let him he would harm complainant and her mother. Complainant further stated that guns were hanging on the walls of defendant's bedroom. One of the guns was loaded.
Complainant testified further that she stayed overnight with defendant about every weekend. She slept in her bed or his bed. She did not know which bed she slept in more or how many times she had slept in defendant's bed. It was defendant's idea that she stay in his bed with him. She wore pajamas. Defendant was nude some of the times and other times wore underwear. Defendant had put Vaseline on his finger and inserted it into her vagina on more than one occasion prior to the Jamaica trip. On the night of Dawn's accident, defendant showed her some movies, then put Vaseline on his finger, and rubbed between her legs for five minutes. Dawn Gerdes stated that she lives with her father, complainant's mother, and complainant. On June 24, 1986, at 5:15 p.m., she was in an automobile accident. Her brother's name is Brad. Defendant threatened complainant, who believed he would shoot her. Complainant further stated defendant usually gave her a bath in the morning when she stayed overnight. She did not ask him to bathe her.
Complainant further stated Dawn Gerdes is her stepsister. On the night of Dawn's accident, June 24, 1986, defendant baby-sat complainant until late in the evening. She and defendant watched X-rated movies on television. Initially, complainant stated that after she and defendant watched a movie, "he used the dildos."
With respect to People's exhibit No. 4, a simulated plastic penis, she testified:
(a) She last saw exhibit No. 4 July 11, 1986, the day before defendant left for Jamaica.
(b) On June 24, defendant showed her the exhibit but did not touch her with it.
(c) She did not see exhibit No. 4 prior to June 24, 1986, the night of Dawn's accident.
(d) Defendant tried to insert the exhibit into her vagina a couple of months before Dawn's accident, around Easter. No one else was at defendant's home at this time. She thought defendant would kill her. She could not get off of the bed because defendant was holding her legs. Afterward, complainant noticed blood in her underwear.
(e) Complainant did not see the exhibit the day before defendant left for Jamaica.
As to People's exhibit No. 5, a rubber simulated penis, she testified:
(a) She had seen the exhibit before June 24, 1986.
(b) She did not see the exhibit on June 24, 1986.
(c) Defendant tried to insert the exhibit into her vagina before Dawn's accident, June 24.
(d) Before defendant "licked her privates" on July 11, 1986, he tried to insert the exhibit into her.
Complainant further testified that defendant told Judy Koltveit to show complainant her breasts. Defendant pulled Judy's shirt up. Defendant showed her magazines and movies and said that when she turned 12 they could engage in sexual intercourse.
She stated she never put a comb in her vagina nor told defendant that she had. She told classmates that Jim McMahon dated her sister; however, she later told them it was a lie. She did not get along with her mother's boyfriend because he spanked her when she did things which were wrong. She was at defendant's house at times alone and when defendant's wife was there. Complainant's mother had a key and let complainant into defendant's house if defendant was not home. Defendant had a video cassette recorder but complainant was not ...